July 2nd marks the 44th anniversary of the U.S. Supreme Court’s opinion in Gregg v. Georgia (1976). In Gregg, the Court upheld as constitutional the newly crafted death penalty statutes of several states – including Texas – and paved the way for the resumption of executions the following year. Since the ruling, more than 1,500 people have been executed nationwide, with more than one-third of those executions carried out by the State of Texas.
Just four years earlier in Furman v. Georgia (June 29, 1972) the Court had ruled that the death penalty system, as administered throughout the United States at that time, was arbitrary, capricious, and discriminatory – as random as being struck by lightning. With the Gregg decision, however, the Justices reversed course and took the position that the newly enacted death penalty statutes did not offend “the evolving standards of decency which mark the progress of a maturing society.”
A decade after the Gregg decision, the Court rendered one of its most damaging opinions in McCleskey v. Kemp (1987), which has perpetuated racial disparity in our criminal legal system. In a contentious 5–4 decision, the Justices held that general disparities in Georgia’s capital punishment system were insufficient to show unconstitutional discrimination in McCleskey’s case.
Jurek v. Texas
Jurek v. Texas was decided on the same day as Gregg. In that decision, the Court determined that the death penalty was not per se “cruel and unusual” punishment and that the capital sentencing procedure in Texas was not unconstitutional, even though it differed from other state statutes in a major way – namely, by requiring jurors to determine whether the defendant poses a continuing threat to society (aka “future dangerousness”).
Since its inception, defense attorneys have challenged this unique facet of Texas’s capital punishment statute on a variety of grounds. And while the statute itself has been amended numerous times, its most lethal provision – future dangerousness – remains intact. The imminent execution of Billy Joe Wardlow, whose crime occurred before he was 21, has prompted his lawyers to again revisit the implementation of future dangerousness. Their appeal argues that given scientific data regarding brain development, a prediction of future dangerousness cannot be made for individuals who were under the age of 21 at the time of the crime.
Race and “future dangerousness”
One of the most egregious aspects of predictions of future dangerousness is the linkage with race. In “Death and Texas,” The Intercept calls future dangerousness “… a subjective finding inextricable from racial attitudes.”
Nowhere was the association between race and future dangerousness more apparent than the death penalty case of Duane Buck. In 1997, Buck was sentenced to death in Harris County for killing his ex-girlfriend, Debra Gardner, and her friend, Kenneth Butler. His own trial attorneys inexplicably introduced testimony and a report from a psychologist, Dr. Walter Quijano, who stated that Buck was more likely to be dangerous in the future because he is Black. The lead prosecutor urged the jury to rely on Dr. Quijano’s racially biased testimony in her closing.
Although Texas conceded error based on similar testimony by Dr. Walter Quijano in six other cases involving Black or Latino defendants – and committed to do the same in Buck’s case – it reneged on its promise to Buck alone. Facing execution on September 15, 2011, Buck asked the U.S. Supreme Court to review the federal courts’ refusal to consider his claim that his trial counsel was constitutionally ineffective for knowingly introducing Dr. Quijano’s race-as-dangerousness testimony.
After Buck received an 11th hour stay from the U.S. Supreme Court, his attorneys with Texas Defender Service and NAACP Legal Defense Fund launched a multi-faceted campaign that garnered support from faith leaders, former judges and prosecutors, civil rights leaders, among others. After years of appeals and setbacks, the U.S. Supreme Court agreed to consider Buck’s case.
On February 22, 2017, in Buck v. Davis, the U.S. Supreme Court ruled that given Dr. Quijano’s racially biased testimony and the inadequate representation of his trial counsel, Buck deserved a new sentencing hearing. Writing the majority opinion, Chief Justice John Roberts aptly observed: “When a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. … Some toxins can be deadly in small doses.”
The Court remanded the case to Harris County for resolution. On October 3, 2017, Duane Buck pled guilty to two counts of attempted murder, including the shooting of his stepsister, and was resentenced to life plus two 60-year terms. He was removed from death row, where he had spent the last 20 years.
Racial bias persists as use of the death penalty declines
While use of the death penalty in Texas is declining – with new death sentences in the single digits for the last 5 years – pursuit of the death penalty remains racially biased. The Intercept notes “…it seems clear that the modern death penalty era remains animated by the same racial dynamics that have always defined capital punishment.”
Over the last five years, more than 70% of death sentences have been imposed on people of color; more than one-third involve Black defendants. In the Texas counties that use the death penalty the most, these patterns of racial bias are even more pronounced.
- 20 of 21 defendants sentenced to death in Harris County since November 2004 are people of color.
- Of the 14 men sentenced to death in Dallas or Tarrant County since 2010, 11 are Black.
Retired U.S. Supreme Court Justice John Paul Stevens, who died one year ago at the age of 99, expressed regret about one vote during his 35 years on the bench: upholding the constitutionality of the death penalty and Texas’s revised death-penalty statute in 1976 in the Jurek decision.
It is tempting to ponder what Justice Stevens and the other members of the 1976 Court would make of this current moment of reckoning with systemic racism. Surely, they would be forced to acknowledge that the death penalty remains every bit as arbitrary, capricious, and offensive today as it was in 1972. Certainly, they would have to confront the reality of what their holding in McCleskey unleashed. Racism continues to permeate every aspect of a death penalty case – investigation and interrogation tactics by the police, prosecutorial discretion, intentional discrimination in jury selection, biased judges, and on and on. The criminal legal system that has looked the other way when Black men and women have died at the hands of police officers is the same system that sanctions the disproportionate incarceration and execution of Black men.
In his article, “Why the fight for racial justice in the US requires the abolition of the death penalty,” Bharat Malkani writes “it’s clear that racism is not a tumor that can be excised from the death penalty on a case-by-case basis but is instead intrinsic to the system. For that reason, politicians who are serious about racial justice must recognize that the path to a more racially just society requires an end to executions.”
For twenty-five years, TCADP has fought to abolish the death penalty. We have been at the forefront of legislative advocacy, statewide outreach, and the mobilization of members and key partners to stop executions in cases that raise serious questions about the fairness and accuracy of the criminal legal system. Our mission lies at the core of the national outrage and demand for change.
Many of Texas’s most troubling death penalty cases are rooted in a corrosive system of racism fostered by predictions of future dangerousness. Our work today is more important than ever, for it is driven by the conviction that a system that relies on predictions that encourage racism can no longer be tolerated. It must be dismantled once and for all.